76 Wis. 357 | Wis. | 1890
In August, 1889, the petitioner was brought before L. A. Calkins, Esq., then acting as judge of the
The petitioner now makes an application to this court for a writ of habeas corpus, to the end that the legality of his imprisonment may be inquired into. The foregoing facts are stated in his petition. He-seeks to be released from such imprisonment because, as he alleges, there was no such court in existence as “ the municipal court of the city and county of Ashland” at the time he was so convicted and sentenced, and no such officer, either de jure or de facto, as judge of such court. If these reasons exist, they are undoubtedly available on habeas corpus, for they go to the jurisdiction.
It was thought best to follow the practice indicated in Petition of Semler, 41 Wis. 517; and so an argument of the application wTas directed and has been had. All questions which could be raised on the return to the writ have been fully argued; and we are as well prepared to decide them on this application as we should be had the writ been issued and were the petitioner before us on the return thereto.
The municipal court of the city and county of Ashland was established by ch. 94, Laws of 1889, wdth jurisdiction concurrent with that of the circuit court of the same county of all cases of crimes and misdemeanors arising in that count}»-, except murder and rape. The act was published March 15, 1889, and it is provided therein that the same “ shall take effect and be in force from and after its passage and publication.” (Sec. 11.) The act also provides as follows: “ The qualified voters of the county of Ashland shall,
The first election for judge was held under said act on the first Tuesday in April, 1889, and L. A. Calkins was duly elected. The notice of election specified that his term of office would commence on the first Monday in January, 1890. Two days after such election the governor appointed Mr. Calkins judge of said court, to hold the office until the first Monday in 'January, 1890. On the authority of State ex rel. Att'y Gen. v. Messmore, 14 Wis. 163, it is claimed that the governor had no authority to make such appointment. For the purposes of this application, it will be assumed that he had not. It should be observed, however, that this application is not necessarily ruled by the Messmore Case, for the appointment in that case was to the office of circuit judge, and the case was decided upon certain constitutional provisions which may not be entirely applicable here.
The questions to be determined are: Was there any such court as “the municipal court of the city and county of Ashland” when such proceedings were had against the petitioner? And, if such court was then in existence, are those proceedings nullities because no person had lawful authority at that time to exercise the functions of judge thereof?
We are of the opinion that these questions are fully answered in In re Boyle, 9 Wis. 264. The facts in that proceeding are as follows: In 1859 the legislature enacted a
After holding in the Boyle Case that the judge thus elected without authority of law became judge de facto when the law took effect, and that his right to the office could not thereafter be inquired into collaterally, the opinion written by Mr. Justice Paine proceeds as follows: “When it appears that the person exercising the powers of an office is in by such a color of right, and that he has such possession of the office, as makes him in law an officer de facto.
The rule in the Boyle Case has been reaffirmed by this court in the following cases: In Dean v. Gleason, 16 Wis. 1, it was held that a tax voted in 1857 was not void because one half the members of the common council which voted it were elected before the city charter took effect. In the opinion, by Paine, J., it is said: “The charter was in force long before the levy of this tax, and those officers were at least officers de facto; and their acts cannot be avoided by any objection to the legality of their election.” In Chicago & N. W. R. Co. v. Langlade Co. 56 Wis. 614, an act of the legislature established Langlade county, and provided that the governor should appoint certain county officers therein to hold their respective offices from the establishment of the county until the first Monday in January, 1882 (nearly one year), and until their successors in office should be elected and qualified. Such appointments were thei’eupon made by the governor, and the appointees qualified as such. This court assumed, for the purposes of the case, that the legislature had no power to confer upon the governor authority to make such appointments. Still the appointees were held to be officers de facto, the validity of whose official acts could not be questioned collaterally. The same rule was applied in Yorty v. Paine, 62 Wis. 154, which, involved an inquiry into the validity of official acts of certain acting town officers. The town had been created by an act of the legislature, and such officers were elected before
The rule established by the above cases is that if the office has been lawfully established, and a person exercises ihe functions thereof by color of right, but whose election or appointment thereto is illegal, his official acts therein cannot be successfully attacked in collateral proceedings, but in all such proceedings will be held valid and binding until the officer is ousted by the judgment of a court in a direct proceeding to try his title to the office.
That the municipal court of the city and county of Ash-land and the office of judge thereof were in existence when the proceedings against the petitioner were had, cannot be doubted. All of the above cases are direct authority in support of this proposition. They also demonstrate that Judge Calkihs was at the time at least judge de faeto of such court. We regard the fact quite immaterial that there was no statute authorizing the election of a judge of that court for a term which would include the time between April, 1889, and Januaiy, 1890. The same feature is found in each of the above cases. The same rule was also applied in State v. Bloom, 17 Wis. 521; Laver v. McGlachlin, 28 Wis. 364; State v. Bartlett, 35 Wis. 287; State ex rel. Wood v. Goldstucker, 40 Wis. 124; Sprague v. Brown, 40 Wis. 612; Cole v. Black River Falls, 57 Wis. 110; Baker v. State, 69 Wis. 32. To these may be added the earlier cases of Tolle v. Stone, 1 Pin. 230; Lask v. U. S. 1 Pin. 77; State ex rel. Knowlton v. Williams, 5 Wis. 308. The only difference between these cases and those first above cited seems to be that in each of them the existence of the office was unquestioned; the controversy being onH as to the right of a particular person to exercise its functions. Having determined, in the present proceedings, that the municipal court of the
A rule laid down more than fifty years ago by the territorial supreme court, and constantly approved and applied by this court in so many cases ever since it was oi’ganized, should not now be disturbed. Rights of property have vested under those adjudications, and citizens have taken upon themselves the obligations and liabilities of public office on the faith of the rule. It may well be that Judge Oalkins would not have entered upon his office under the executive appointment thereto, the validity of which was in doubt, had he not believed that the .settled law of this state, evidenced by so many adjudications, would protect him from liability for his official acts if his appointment should afterwards be held invalid. It would be an unauthorized and most cruel exercise of judicial power to take from him, in this collateral proceeding, the protection upon which he had a right to rely, and that, too, without giving him an opportunity to be heard; thus exposing him to suits for damages by every person whom he caused to be arrested
By the Court.— The application for a writ of habeas corpus is denied, and the petition dismissed.